Third Circuit Employment Law 101: Quid Pro Quo Harassment

Robert Rank-And-File, an employee of Pennsylvania-New Jersey-Delaware, Inc., claims that Sally Supervisor told him, “Sleep with me, or you’re fired!” Robert declines Sally’s advances only to have Sally fire him. If Robert decides to pursue an action under Title VII against Pennsylvania-New Jersey-Delaware, Inc., how can he prevail at trial?

He needs to establish five elements by a preponderance of the evidence:

1. Sally made sexual advances to Robert because of his gender (male);
2. Sally’s advances were unwelcome;
3. The only way that Robert could keep his job was by having sex with Sally;
4. Robert was subjected to an adverse employment action (he was fired); and
5. Robert’s rejection of Sally was a motivating factor in his former employer’s decision to terminate him.

If Robert fails to prove any one of these five elements by a preponderance of the evidence, he loses. Otherwise, Pennsylvania-New Jersey-Delaware, Inc. is up the creek without a paddle.

So what should employers in PA, NJ and DE do when they receive an internal quid pro quo harassment complaint?

1. Investigate. This means interviewing the victim, the alleged harasser, and any potential witnesses. Gather other evidence (notes, emails, social media content, etc.)
2. Maintain confidentiality. Keep all investigation details secret and only share on a need-to-know basis.
3. Discipline. If the investigation establishes that Sally made the “sleep with me or you’re fired” statement to Robert, fire her. When it comes to quid pro quo harassment, forget about counseling and second-chances. Get rid of Sally ASAP.